Sunday, December 18, 2005

Here's when domestic spying is allowed under law -- and the Republican lies about that law. Unclaimed Territory - by Glenn Greenwald: Purposely misquoting FISA to defend the Bush Administration

Update: The foreign intelligence surveilance law lets you ask for a warrant 72 hours AFTER you start surveillance. So the president's arguments that timely action was necessary to act against terrorist threats is completely bogus.

Even conservative legal scholars concede: the President broke the law. At the right-leaning Volokh conspiracy, Orin Kerr offers the most detailed analysis of the various statutes and constitutional sections that might justify warrantless wiretaps, and concludes:

"My answer is pretty tentative, but here it goes: Although it hinges somewhat on technical details we don't know, it seems that the program was probably constitutional but probably violated the federal law known as the Foreign Intelligence Surveillance Act. My answer is extra-cautious for two reasons. First, there is some wiggle room in FISA, depending on technical details we don't know of how the surveillance was done. Second, there is at least a colorable argument — if, I think in the end, an unpersuasive one — that the surveillance was authorized by the Authorization to Use Miltary Force as construed in the Hamdi opinion."

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